Function Media, L.L.C. v. Google, Inc. et al

Filing 321

MOTION to Expedite Briefing and Consideration of Google's Daubert Motion to Exclude Certain Testimony and Opinions of Mr. Walter Bratic by Google, Inc.. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Candido, Amy)

Function Media, L.L.C. v. Google, Inc. et al

Doc. 321

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION FUNCTION MEDIA, L.L.C., v. GOOGLE, INC. AND YAHOO!, INC. Civil Case No. 2:07-CV-279 (CE) JURY TRIAL DEMANDED

EXPEDITED MOTION TO EXPEDITE BRIEFING AND CONSIDERATION OF GOOGLE'S DAUBERT MOTION TO EXCLUDE CERTAIN TESTIMONY AND OPINIONS OF MR. WALTER BRATIC

Google Inc. respectfully requests that the Court expedite briefing and argument on Google's intended Daubert Motion to Exclude Certain Testimony and Opinions of Mr. Walter Bratic. Google's Daubert Motion regarding Mr. Bratic -- the only Daubert motion that Google intends to file -- will principally concern Mr. Bratic's improper reliance on Google's acquisitions of entire companies in connection with his reasonable royalty analysis under Georgia Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). These issues are inextricably intertwined with Google's Motion In Limine No. 10, which was fully briefed and argued at the December 4, 2009 Pretrial Conference, and issues regarding the admissibility of evidence regarding Google's acquisitions to be addressed at the January 5, 2010 evidentiary hearing. Accordingly, it is most efficient for all parties and the Court to have the hearing on Google's Daubert Motion on that same date. Moreover, Google requests that its Daubert Motion be heard on January 5, 2010 so that Google can appropriately prepare for trial on January 19, 2010.

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Dockets.Justia.com

Google thus proposes the following schedule so that this Court can hear Google's Daubert Motion on January 5, 2010:1 December 16, 2009: Opening Brief Due December 23, 2009: Response Due December 30, 2009: Reply Due January 5, 2010: Hearing

Function Media opposes this request on the basis that "a condensed schedule in the midst of expert depositions and Christmas so that the hearing can be on January 5 is prejudicial." (Ex. A.) The proposed schedule, however, is not prejudicial to Function Media, whose opposition is due before Christmas. In fact, if anyone is disadvantaged by the proposed schedule, it is Google. Under the proposed schedule, Google's Daubert Motion regarding Mr. Bratic would be filed two days before Mr. Bratic's December 18, 2009 deposition. Not only would Google not be able to refer to Mr. Bratic's testimony in its Motion, but Function Media would be able to use Google's Motion to prepare Mr. Bratic for his deposition. Despite these disadvantages, Google requests expedited briefing and consideration of its Daubert Motion regarding Mr. Bratic so that Google can adequately prepare for the January 19, 2010 trial. The issues to be addressed in Google's Daubert Motion will impact whether certain fact witnesses will need to testify at all, the scope of other fact witnesses' testimony, and the scope of the parties' damages experts' testimony. If Google will need to conduct a mini-trial on each of its acquisitions, Google needs to know that as soon as possible to prepare appropriately and to line up necessary witnesses. The Court's January 24, 2008 Docket Control Order (Dkt. No. 45) set October 2, 2009 as the deadline for filing Daubert motions. However, because of changes to the timing of the claim construction hearing, by that date, no claim construction order had issued and no expert discovery had taken place. 2
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In sum, Function Media will not be prejudiced by Google's proposed schedule, but Google's trial preparation will be severely prejudiced if its Daubert Motion regarding Mr. Bratic is not expedited. For these reasons, Google respectfully requests that the Court grant Google's Expedited Motion to Expedite Briefing and Consideration of Google's Daubert Motion to Exclude Certain Testimony and Opinions of Mr. Walter Bratic. A proposed order is submitted herewith. Dated: December 11, 2009 Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By: /s/ Amy H. Candido Charles K. Verhoeven (admitted pro hac) Lead Attorney [e-mail] Amy H. Candido (admitted pro hac) [e-mail] Carl G. Anderson (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Edward J. DeFranco (admitted pro hac) [e-mail] James M. Glass (admitted pro hac) [e-mail] Patrick Curran (admitted pro hac) [e-mail] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: [phone] Facsimile: [phone]

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Harry L. Gillam, Jr., Bar No. 07921800 [e-mail] Melissa R. Smith, Bar No. 24001351 [e-mail] GILLAM & SMITH, L.L.P. 303 South Washington Avenue Marshall, TX 75670 Telephone: [phone] Facsimile: [phone] Counsel for Defendant and Counter-Claimant GOOGLE INC.

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CERTIFICATE OF CONFERENCE Counsel for defendant Google Inc. conferred with counsel for plaintiff Function Media regarding the relief requested in this motion. Plaintiff indicated its opposition to this motion. Date: December 11, 2009 /s/ Amy H. Candido Amy H. Candido

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on December 11, 2009 to counsel of record via ECF/PACER.

/s/ Amy H. Candido Amy H. Candido

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